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How Likely Is It A Deportee Will Be Awarded Prosecutorial Discretion?

by Marilyn Olson

If you (or your loved one) are one of the 600,000 people waiting to have their cases heard by the immigration court, you may be wondering if it's possible to convince the USCIS (United States Customs and Immigration Services) to discontinue pursuing prosecution in your case. While you can apply for prosecutorial discretion, your chance of getting approved for it is pretty low. Here's more information about what prosecutorial discretion is and why you're better off exploring other avenues for avoiding deportation.

How Prosecutorial Discretion Works

Prosecutors in the criminal court system can decide whether or not to pursue criminal charges against defendants, which is called prosecutorial discretion. Prosecutors' offices are notoriously backlogged with cases; thus, they must be picky about which cases to spend energy and resources on. If a prosecutor doesn't feel like a case against a defendant isn't worth his or her time to litigate in court, the attorney may decide not to continue with it.

In the context of immigration, an USCIS or ICE agent may decline to continue pursuing deportation proceedings against individuals who meet certain criteria, so they can prioritize their resources to litigate cases involving detainees who represent a danger to national security and/or public safety or who have criminal records. In the past, people who had been living in the United States for years and didn't have criminal records had a high chance of being approved for, what amounted to, clemency.

Thus, many attorneys encouraged clients who fit this category to apply for prosecutorial discretion because, after being approved, clients could then work on becoming citizens or attaining legal status in the country in other ways.

Why Your Petition Will Likely Be Declined

Unfortunately, things have changed quite at bit since the Obama administration was in power. During President Obama's reign, he asked the USCIS and ICE to prioritize deportation cases in the following way:

  1. People who are a threat to national security, the border, or public safety
  2. People with criminal records
  3. People who have been ordered to leave the country

Anyone who didn't fit these categories were placed low on the list of cases to pursue, and many were offered prosecutorial discretion at the encouragement of the president at the time.

However, a new administration has taken over and has issued a directive to essentially deport everyone who is not in the country legally regardless of the circumstances of their cases. The guidelines put in place by the previous president (Obama) have been rescinded, and every non-citizen without the proper paperwork is at risk of being arrested and sent back to their countries of origin.

In the current environment, it's highly unlikely anyone who applies for prosecutorial discretion will be approved. In fact, many attorneys are discouraging clients who haven't been arrested yet to avoid applying for the program for fear of alerting the immigration agency to their presence.

Applying for Prosecutorial Discretion

If you think you may have a good chance of being granted prosecutorial discretion and want to pursue it, you would need to apply for it at your local ICE office. People who are already in custody, however, would need to request it at their hearing before the judge. In either situation, you should need to submit a statement to the agency or court listing the reasons why you should be approved for prosecutorial discretion. For instance, you should talk about how your presence has benefited your community or your relationships with other citizens.

Once you submit your request, ICE or USCIS will let you know whether your request has been approved or denied within a short period of time. There is no limit on the number of times you can submit your request, though it may be a waste of time and effort if you have nothing new to add to your petition that may change the agency's mind.

To learn more about prosecutorial discretion or help with your deportation case, contact an attorney, like one from Law Offices of Michael Dye.